Wednesday, April 18, 2018

Perfectly acceptable words can become detestable through
overuse and misuse.“Incredibly” and
“iconic” vie for first place on my list of abhorrent words. Overuse sucks the lifeblood out of them. Why can’t somebody just be who she is, for
example, without the adverb “incredibly” dressing up and confusing a pejorative
or praising adjective?An incredibly talented oboe player may not be all that talented if her talent
is not credible.

What also drives me nuts are guests on radio and television
interviews who respond to the host’s salutation, “Thanks for being here,” with
the cloying response, “Thanks for having me.” On the occasions when an interviewer with poor
judgment has actually… (Whoops! Another word I despise.)
“Actually”… really? “Actually” is a revolting redundancy. Where
were we? Oh, yes, “when an interviewer with poor judgment has…” thanked
me for an interview, I respond with the novel, “You’re welcome.” And,
besides, I would never thank anyone for being had.

And we need not dwell on the insufferable “no problem.” “Can you change a dollar for me?”How about this for a unique answer from the
cashier ‑ “yes”?Even if I asked would
it be a problem to change a dollar, a good response would be “no” if the
cashier can and will change a dollar.The
cashier does not have to add “problem” to “no.” I wonder how the cashier would
respond if I asked, “Would it trouble you to change a dollar?” I can
barely tolerate “no trouble,” but would go crazy if he said “no problem.”

Recently I was introduced to a new word I am certain will
not be overused. It was discussed in an article sent to me by well-known trial
attorney John Blumberg.The article
appears in the November 2017 issue of Los Angeles Lawyer.It was written by prominent appellate
attorney Marc Poster. For those of you
who have not heard of these attorneys, I suppose they are neither well known
nor prominent from your limited perspective. To maintain balance and fairness in my column,
from time to time I have mentioned attorneys who are neither well known nor
prominent.But to avoid controversy, and
possibly a spurious lawsuit from unknown attorneys, please strike the
adjectives “well known” and “prominent” from the descriptions of the two
lawyers mentioned above.

Where were we?Oh,
yes, the new word Poster writes about.The
word is “dubitante.” Like most of you, I
didn’t know what it meant either.Poster
tells us dubitante comes from the Latin word “doubting” and is used in judicial
decisions.In my 42 years of judging, I
never came upon dubitante, and I admit it scares the hell out of me.I confess to being in a perpetual state of
doubt. I have argued that uncertainty
pervades the law, but dubitante, if carried to extremes, and we see extremes
raging across the world these days, could undermine the entire judicial
system.Poster says, “A judge voting
dubitante signifies that he or she doubts the decision rendered, but is
unwilling to state it is wrong.”It
might also be called an “indecision.”

Dubitante has its place when a judge deciding a case doubts
the validity of her decision because it must be based on precedent established
by a higher court.But what about Judge
Dillard in Nalley v. Langdale (2012) 734 S.E.2d 908, 922,
quoted by Poster.Dillard acknowledges
in his concurring opinion that if he were deciding the case alone, his
“reasoning and conclusions” could differ from the majority opinion.Huh? But, not to worry, the concurring Dillard
assures us that his “colleagues have carefully and seriously studied the
case.”He defers “to the conclusions
they have reached,” but then he pulls the carpet from under us with the caveat
that his deference is emasculated by his “considerable reservations” about the
majority’s conclusions.

Wait a second.Last
time I checked, we judges are obligated to decide.It is in the job description. Judge Dillard’s frank admission is
disquieting.Is it possible that on
occasion a concurring judge who has vague doubts about concurring in an opinion
goes along because of time constraints or laziness? This could all be happening just below the
level of consciousness.This approach to
jurisprudence reminds me of a New Yorker cartoon from many years ago. The jury foreman is standing and addressing
the judge.The caption reads:“Your Honor, we would rather not get
involved.”

Dubitante can usher in a new judicial philosophy, the
school of Doubtful Jurisprudence where opinions are doubtful or simply not
rendered because the result is doubtful.The dubitante judicial philosophy could well be influenced by the
parting comments of Judge Posner on his retirement.

Posner posits that judges mostly do whatever they want and
dress up the result in legal language. In an interview with Adam Liptak in the New
York Times, Sept. 11, 2017, Posner said, “I pay very little attention to legal
rules, statutes, constitutional provisions. A case is just a dispute.The first thing you do is ask yourself‑forget
about the law‑what is a sensible resolution of this dispute?”Posner believes that if there is a “Supreme
Court precedent or some other legal obstacle [standing] in the way of ruling in
favor of that reasonable resolution,” a rare occurrence, “they’re often easy to
get around.”

Dubitante is less or more honest, depending on your point
of view.It acknowledges that the judge
does not know or is not sure what the answer is.Posner’s parting philosophy could convince
the judge who is unsure of the result to craft an opinion she or he thinks is
sensible.

A judge who I
never thought would have anything in common with Judge Posner was my friend,
Harry Pregerson, who passed away last month.Posner was an exponent of the economics school of jurisprudence.He was a conservative for whom principles of
social justice were overshadowed by principles of economics and social
utility.But he changed and became more
like Judge Pregerson for whom the plight of the poor and disadvantaged was of
prime importance.Pregerson was
unabashed in expressing his judicial philosophy for which he, like Judge Posner
of late, took criticism.It was reported
that in his senate confirmation hearings he told the senators, “If I had to
follow my conscience or the law, I would follow my conscience.”

When I first
went into private practice in the Valley, Harry’s office was a block or two
away from my office.We would exchange
greetings in court and share a few war stories.When Harry became a municipal court judge, I appeared before him on a
dog bite case.I will save that
hilarious story for another column.I appeared
before him when he was a superior court judge as well.I can assure you that, even though I
prevailed in both cases, it had nothing to do with our friendship.

Harry was sui
generis, a gentleman, filled with love and respect for everyone.He made a difference.And here there is no dubitante.

The
Courts of Appeal throughout the state are now receiving briefs and other
filings electronically.The small
minority of troglodytes, I mean, Luddites, confessed privately to me that the
change is disquieting.I have alleviated
my unease with a re-read of The Cherry
Orchard.Progress has its
downside.I hesitate to think of my
discomfiture if I should ever get behind the wheel… I mean, get into a
driverless car.

But, like most judges, I daily use my
computer to draft opinions, write articles, columns, and to communicate with,
among others, my colleagues and staff.But, in the back of my mind, I have been wary.Several years ago I sat by assignment with
the California Supreme Court on a case, the outcome of which would involve
millions of dollars. In that case we did
what I do with my colleagues on the Court of Appeal.Prior to and after our conference, we
communicate by email about the holding, the language with which to state it, and
how to respond to one another's concerns, including a possible dissent.

In the midst of typing my thoughts
about the case and its emerging holding to members of the court, I
panicked.What if unauthorized people
were able to read (I was not then familiar with the term "hacked")
our emails?They could possibly make or
save lots of money if they knew or even had an inkling of how we were going to
rule. Worse yet, they could take
advantage of other unsuspecting people who might part with money they otherwise
would not spend. I was assured by the
appropriate "tech people" at the court that our emails were secure and
that I need not worry.And, as far as I
know, no breaches have occurred in our court system.

But recently my complacency has been
shaken by the Equifax catastrophe and concerns about the hacking of political
parties’ emails. To take my mind off the
problem and calm myself, I watched some past episodes of Gang, I mean, Game of Thrones.Still not sure what it is about, but it
involves warring families and varying factions seeking political power and
domination over others.Horrendous
cruelty abounds. Ghastly death scenes
showing glistening human innards are frequent. There are a few admirable, yet flawed,
characters, but many, whether they lust for power or not, display traits of
deceit, jealously, revenge, cowardice, and sadism. And most of them dwell on their differences,
instead of banding together to fight their common enemy‑ death. In other words, this series is about our
current state of affairs. The cool
dragons that can incinerate thousands of people reinforce my point.

Would you believe it?The Game
of Thrones series provided me with what could be a defensive maneuver
should anyone think about hacking the court.Like most series, the Game of
Thrones’ plot or should I say plots are carried on from show to show,
season to season.At the end of each
show, the viewer is left in a state of morbidly anxious curiosity about how the
final dramatic nail-biting scene will be resolved. This has resulted in a display of one of the
lowest forms of depravity. Unscrupulous
spoilers have leaked the ending in advance of the next show. Can you believe it?

To foil such vexatious conduct, the
producers of Game of Thrones borrowed
a device used in the famous television series of yesteryear, Dallas. In Dallas,
they filmed several endings to prevent those who would reveal beforehand who
shot J.R.I read that The Sopranos shot several different
endings for its final show.And The Walking Dead filmed death scenes for
all 11 possible victims.Game of Thrones intends to shoot
multiple endings of its final season to thwart those who wish to spoil the
suspense.

So why not use this approach with
Supreme Court and Court of Appeal opinions? It might take a little more time to draft
multiple endings. And I suppose the
endings would have to have a reasonable relation to the facts and law that
precede them.The rule I usually follow
is that the ending naturally falls into place by what precedes it.But I doubt hackers would be the type of
people who read what precedes the ending that closely.In fact, does anybody, except maybe an
annoying law professor?When I was a
trial judge and received an opinion from the Court of Appeal on one of my
cases, I always read the last page first.But due to a startling experience, I stopped doing that. I recall reading the last page of such an
opinion and seeing that heartbreaking word “reversed.” I was crestfallen until I realized I had read
the last page of the dissent.

Speaking of alternate endings, I almost
forgot to mention that I often write multiple endings to my columns before
publication. This frustrates miscreant hackers
who wish to deprive my readers of the suspense that precedes the endings of my
columns that are often unexpected, if not puzzling.Because of the nature of this column’s
subject matter, I wrote many more endings than usual. And wouldn’t you know it?I forgot which one is the real ending.Darn!If any of you have suggestions about how I can resolve this dilemma, let
me know.Not sure you should use email.

Back in the old days when I practiced law, IBM Selectric was
state of the art. Few attorneys did
their own typing, me being exhibit A.And during desperate times when my secretary was sick, and the deadline
hours away, I stumbled through rounds of combat with the Selectric. To place the boxing analogy in the present, I
was McGregor…sort of.

It was the
typos in each round that cost me points.Lack of speed didn’t help either. The cold, calculating IBM Selectric, like
Mayweather, wore me down.Even with
today’s computers, and voice recognition software, pesky typos creep into my
prose.Bonnie, my watchful judicial
assistant, usually ferrets them out.

Typos can have
significant consequences in judicial opinions, motions, briefs and other legal
documents. Although not technically a
typo, I include within the definition the inadvertent omission or addition of a
word.“Not” comes to mind, particularly
when it should or should not precede “guilty.”

In Afewerki v. Anaya Law Group (9th Cir.,
Aug. 18, 2017, No. 15‑56510), a typographical error was termed a “false
statement.”Defendant debt collector ran
afoul of the federal Fair Debt Collection Practices Act (FDCPA) when it filed a
complaint in state court to collect an unpaid debt.The debt collector was given the correct
amount of the debt due the creditor, $26,916.08.But the collection company sued for $29,916.08,
$3,000 more than owed.

In reversing the trial court on
summary judgment in favor of the collection company, the 9th Circuit concluded
this was a material false representation that could “‘cause the least
sophisticated debtor to suffer a disadvantage in charting a course of action in
response to the collection effort.’” This,
despite the acknowledgment that the error was inadvertent and corrected by the
debt collector who served the debtor with notice of the correction.

And typos in other areas can have
embarrassing repercussions. But first we
have to decide if in fact an apparent typo is in fact a typo.More than 10 years ago, I wrote about a
newspaper story concerning a bank robbery. I guess the following example was a typo.

The front page headline told of an “armed old man bandit”
who robbed a local bank.Let’s put aside
the question whether a bank can be robbed.And forget my indignation when I read that the “suspect’s age is
somewhere between 50 and 60.”

The
article describes the “aged robber” as victimizing “multiple tellers” at “various
local banks” over the past several months. I suppose he could have victimized various tellers
at multiple banks.But, anyway, the
elderly bandit entered the bank with a gun and threatened to detonate a device
that looked like a pipe bomb.The
article then states, “The employees were ejaculated” and “the area sealed off.”I heard that one teller asked the robber if
she would see him again. Another
employee lit a cigarette. Jay Leno
thought the robbery had occurred at a sperm bank.

Some
years ago I received an award from an organization that presented me with a
large parchment scroll. My name appeared
in bold, elegant, decorative calligraphy that would have been appropriate for
the Magna Carta, or at least a movie about the Magna Carta. The organization noted that among my
attributes my “dedicated pursuit of truth and integrity in the judiciary are
paralleled.” Guess I was not much of a
standout after all.

I would like
to resist the childish temptation to search for titillating examples of typos
to share with you.So here are a few I
came across. Excuse me…I didn’t say I
would or could resist.You might ask
yourself if they are in fact typos.A
school district urged parents to become “a Partner in Pubic Education.”Shouldn’t kids have a well-rounded
education?A restaurant advertised its
burger’s special ingredient, “anus beef.” I’ll settle for a ham on rye. I saw an ad for “Van Camp’s Porn and Beans.” The opening page of a published book contains
a “PEEFACE.”But not in Under Submission, Volume II of my
columns soon to be released. I could go
through some examples of tattoos gone awry.Can you believe a biker has tattooed on his derriere .… ?Never mind.

*****

Two brief
postscripts.First to wish one of our outstanding
jurists the best on her retirement.Beginning
this month Justice Kathryn Werdegar will no longer be sitting on the California
Supreme Court. Her incisive analysis,
clear writing style, and well-reasoned opinions established sound precedent in
California and helped sustain the preeminence of the California Supreme Court. Her influence was far reaching and will
continue in California and beyond for decades to come.

And, second, a
final goodbye to my dear friend of 60 years, legal scholar extraordinaire,
Harry Sigman, who passed away last month. Harry taught commercial law at USC, UCLA, and
universities in Europe and Israel. He represented the United States at the
United Nations in matters of commerce.His books, articles, treatises, and lectures on commercial law have been
translated into numerous languages. He
was the world’s expert on Article 9 of the Uniform Commercial Code and authored
significant changes in that law throughout the years. No wonder he received the California State Bar’s
Business Law Section’s Lifetime Achievement Award.

Harry spoke
numerous languages and was well versed in art, architecture and history, proving
that a rich cultural background makes for excellence in a lawyer. Harry’s searing intellect was put to good use
in forging the foundation of what could well become a uniform commercial code
in the European Union and the United States.This dream of Harry’s would ensure a reasonable degree of certainty in
commercial transactions throughout the world. Harry, you will live on through your accomplishments.

I
was at a dinner party at a friend's palatial mansion.There on the wall of the living room was Van
Gogh's “Vase with Fifteen Sunflowers.”I
said to him, "You must have paid a fortune to the Van Gogh museum in
Amsterdam."He replied with the
nonchalance of the well-to-do, "It's a fake.So is the Picasso in the den.They cost plenty."His casual response brought home that today fake
is de rigueur.

That was not the case when I was a
kid. Fake fur coats were derided as
cheap imitations for the unsophisticated of lesser means. I recall a friend of my parents wearing around
her neck a wrap of some poor, furry little creature with his stuffed head and
outreached claws hanging over her right shoulder.Such a haunting image can stay with a person
for the rest of his or her life. Some
critics suggest it has influenced my judicial decisions.

That reminds me of something even creepier.When I was around five or so, my parents took
me to visit their friend, an elderly lady, whose dog, Cookie, a Pomeranian, had
died.She enlisted the services of a
talented taxidermist to have the dog preserved. She brought the dog out of the closet for me
to play with.This too may have
influenced my judicial decisions.

Years later at a lecture on emotional distress by Professor
Prosser in my torts class, it dawned on me why the dog never retrieved the
balls I threw for him.This encounter
with a fake live dog was traumatic.It
has been therapeutic to write about the experience.See past columns "Death Becomes
You," May 2008, and "Pardon the Interruption," October
2014.(Note‑Twenty-nine years of columns
is bound to result in some recycling, whatever the reason.)

But getting back to fake furs.In the "old" days, not all fake was
bad.No one, well almost no one, thought
Houdini actually disappeared into the ether from the water tank in which he was
submerged head first, tied up in chains, only to materialize minutes later stage
right, dripping wet.

But today, what is fake is accepted
and even respected in some quarters.Fake
furs are worn and acknowledged by many people no matter their economic or
social status. In many quarters killing
endangered animals to make a frock is unacceptable. And of course fake diamonds (to be genteel,
let's call them synthetic diamonds) are worn by people of all strata.Better to wear a cubic zirconia to a fancy
ball and leave the diamond in the safe deposit box.No one, well hardly no one, knows the
difference and no one really cares. And today violins can be manufactured to nearly
duplicate the sound of a Stradivarius. Violin virtuosi cannot tell the
difference.

And in bygone days we tried to
maintain a healthy skepticism about what we read in the newspaper, but we never
conceived of "altfacts."As I
pointed out in previous columns, "altfacts" is a paradox, an
oxymoron.

What is alarming is that the current
"fake" phenomenon has the potential to permeate the judiciary.I know of appellate justices who have had their
opinions collected in impressive hardbound volumes.These imposing books are prominently
displayed in law firms and offices of arbitration providers where retired
justices work.They allegedly enhance
business.

But what if many of these bound
opinions are mediocre or have been reversed with critical broadsides from the
Supreme Court?To the sophisticated
reader, this business-getting device could backfire.I fear that some enterprising entrepreneur
will print "altopinions."Surely
no justice would participate in such a sham.I doubt I would.Nor would I
worry too much about a slippery slope. But…
what if there were some sentences or paragraphs that could use a little editing
for clarity?Mind you, such tinkering would
not change the result to a reasonably perceptive reader.Or what if the Supreme Court just got it
wrong or even got it right in its stinging reversal of the justice's opinion?Would it not be permissible to set things
right in an altopinion?I'm just
asking.If someone other than the
justice involved wrote an altopinion, that would be akin to forged art.

Enough about appellate justices.I am concerned about trial judges who often
suffer from incomplete truths that lead to untrue conclusions.This occurs when only a portion of the facts
are known or reported.Back in the 60’s and
early 70’s, Baxter Ward was a newscaster.He served on the Los Angeles Board of Supervisors from 1972 to
1980.When I was a young lawyer, I
recall a so-called news story Ward reported concerning the Los Angeles Superior
Court.

One afternoon, Ward walked down the
corridors of the Mosk Courthouse, which was then called the Los Angeles County
Courthouse.He noted how few courts were
in session and castigated the judges by name for playing hooky. Of course his viewers did not know that the
judges whose courtrooms were empty were in chambers settling cases or reviewing
the next day's complicated law and motion calendar.

Today we have a solution for this kind
of misleading reporting that creates a false impression.I read recently in the New York Times about a
company that has offered its employees the option of having a chip inserted
under the skin to monitor their work and ensure they are keeping their
hours.This gives employees indisputable
proof they are working a full day.Not
sure, however, if the chip is able to determine what the employees are doing
while at work.

What a wonderful idea for trial
judges.Judges, please bear with
me.Don't stop reading.It's not a big deal.The chip is only the size of a grain of rice
and is inserted between your thumb and index finger.It is not a tracking device.You merely swipe your finger under a device to
prove you are at work. Just think, this
tiny device would have revealed all the missing facts to defeat Baxter Ward's
erroneous conclusion.

You ask why not insert chips in the
fingers of Court of Appeal justices?That would be absurd.First of
all, appellate justices appear in a courtroom for oral argument only once or
twice a month. Other than that, the
justices are usually out of sight, meticulously drafting and editing
opinions.Second, does anyone in the
media or public really know or care about the Court of Appeal? Unlike trial judges, appellate justices' names
are rarely mentioned in the news.I'm
just trying to help.And that's a
fact.

Wednesday, July 05, 2017

In
last month’s column FACTS ARE, I posited that the plural noun “facts,” or for
that matter “fact” in the singular, must not be preceded by the adjective
“true” or “false.” Those adjectives are
either redundant as in the case of “true facts”
or contradictory as in the case of “false facts.”
But depending upon a writer’s skill and
judgment, appropriate adjectives may precede “facts.” A few come to mind: “astonishing,” “shocking,” “breathtaking,”
“remarkable,” and “grotesque.”

And when not sure how much credence to
place in unrefuted or unsettled facts, which by their very nature may seem
questionable, certain adjectives that come close to “false” may be appropriate.
“Questionable, “problematic,” “dubious,”
“doubtful,” and even “incredible” come to mind.

Lawyers, judges and juries deal with
this dilemma all the time. They must
decide what are the facts. And once
those facts are established, they are the facts, unless some judge or
appellate court finds them “unbelievable” and decides to do something about
it. But what do they know?

Now let’s move on to illustrate facts
dressed up with falsities to color or mischaracterize the context or the
setting in which the irrefutable facts occur.

Example in point‑‑the unpublished
opinion of Lester Knispel, as Trustee, etc., Plaintiffs and Respondents, v.
Michael Scott Shore, Defendant and Appellant (June 9, 2017, B270450, Los
Angeles County). The problem does not
occur in appellant’s apparently accurate presentation of the facts to the
appellate court. To quote from the
opinion:

“Appellant Michael Scott Shore seeks
to set aside a judgment confirming an arbitration award issued by Judge Aviva
K. Bobb (Ret.) on the ground that Judge Bobb failed to disclose she and
Respondents’ attorney, Marc L. Sallus, were members of the Los Angeles Lawyers
Philharmonic Group together. We affirm
the judgment. [In a footnote the court
stated that the dispute decided in the arbitration was irrelevant to the issue
on appeal.] [¶] …

“On October 1, 2014, Appellant filed
his opposition, contending the arbitrator failed to make timely disclosures to
him about having previously served as an arbitrator or mediator with Sallus’
law firm on over forty occasions in the past three years. Further, Appellant argued Judge Bobb failed
to disclose at any time the fact that she and Sallus had both been members of
the Lawyers Philharmonic, for which they ‘have been practicing and performing
together … since at least November 2010.’
According to Appellant, he would not have selected Judge Bobb and would
have objected to her appointment if he or his counsel had known of this purportedly close personal
contact. He only discovered this fact
from ‘a friend’ in September 2014, after the arbitration award had been issued.

“Respondents presented Sallus’
declaration in support of their petition, which stated he played trombone and
baritone (a smaller version of a tuba) in the Lawyers Philharmonic. The Lawyers Philharmonic is comprised of
approximately 150 to 175 musicians who are lawyers, judges, justices,
paralegals and others involved in the practice of law and it performs three or
four times a year. Judge Bobb also
submitted a declaration which explained her role in the group; she played the
violin, but she had not been a part of the group for about a year. Both Sallus and Judge Bobb affirmed that
‘string’ players had little contact with ‘brass’ players and there was no
opportunity during rehearsal or performance for them to communicate. The only interaction either of them had with
one another while they were members of the Philharmonic was if they ran into
each other, they would exchange basic pleasantries.

“The trial court granted the petition
to confirm the arbitration award. In
connection with its ruling, it found, in pertinent part, ‘that Judge Bobb (a
violin player) and Mr. Sallus (who plays the trombone) both played in the Los
Angeles Lawyers Philharmonic. The Court
further finds there is zero evidence of any personal relationship between Judge
Bobb and Mr. Sallus, and consequently, there was no need to disclose
participation in the Philharmonic. The
Court specifically finds the Declarations of Marc L. Sallus and the Hon. Aviva
K. Bobb, Ret. to be persuasive. Both
Declarations establish that the contact between Mr. Sallus and Judge Bobb was
minimal at most, and that they did not interact with each other at all, other
than to exchange pleasantries every once in awhile.’”

Pardon the parenthetical aside, but
if musicians were hearing the case, they might have taken judicial notice that
it is rare for string and brass players to fraternize. Why would they? Well, to be fair, I suppose trombone players
and viola players are likely to hang out together. Note, I said viola players, not first string
violinists.

I draw this inference, because
trombonists and violists are the butt of cruel, ill-founded jokes. For example: What do you call a guy who knows how to play a
trombone and doesn’t? A gentleman. What is the best kind of trombone? A broken
one. Why is a dead snake in the road more tragic than a dead trombonist in the
road? There are skid marks in front of
the snake.

I could go on, but common decency
prevents me. So I will turn to a few
disparaging viola jokes. How do you keep
your violin from being stolen? Put it in
a viola case. What is the difference between
a viola and a trampoline? You take your
shoes off to jump on a trampoline. What
is the difference between a viola and an onion?
No one cries when you cut up a viola.
And, finally, how do you get two violists to play in tune with each
other? Ask one to leave.

But let us get back to our theme of
adding falsity to established facts. I
learned that at oral argument appellate counsel made an appalling
misrepresentation to the court. When I
was told about the enormity of the falsehood, I couldn’t believe it, despite
the high credibility of my confidential sources. I therefore was able to obtain a recording of
the oral argument and heard it with my own disbelieving ears. Appellant’s counsel represented to the court
that the Los Angeles Lawyers Philharmonic was a punk rock band. Even the court was incredulous. Presiding Justice Bigelow did point out, as I
recall, that the Los Angeles Lawyers Philharmonic is a symphony orchestra. The unflappable conductor of the orchestra
Gary Greene thought the characterization was amusing. I can’t say the same for Beethoven, Sibelius,
Elgar, and Tchaikovsky.

I end with full disclosures.

Disclosure #1. I am a judge and I have reviewed facts that
have strained my credulity but, as far as I can remember, never have I reversed
a case on that ground.

Disclosure #2. I know Marc Sallus. He and I also are members of the Big Band of
Barristers in which he plays trombone and baritone. The latter instrument I would characterize as
a tuba with a vitamin deficiency. We
often speak to one another. That is because the piano is not a string
instrument in the same sense as a violin or a viola. I consider Sallus a friend. But after the trombone jokes, that may be an
unwarranted assumption.

For what noun are the adjectives “true” and “false”
misleading? Facts. Facts are.
That is why “true” is redundant to describe facts. When lawyers and judges use the phrase “true
facts,” it drives me nuts. Facts
are. Sorry to be repetitive. And “false” facts are not facts. So why call them facts? And I refuse to discuss “alternate”
facts. Such facts may exist in an
alternate universe but not here.

Of course we can get facts wrong. But so-called wrong facts are not facts. Whether promulgated by intention or negligence,
they are imaginary… trumped up. Unlike
facts that are, they aren’t. Example ‑
I attended a concert at Disney Hall last week. One of the selections was Igor Stravinsky’s “Requiem
Canticles.” In the slick performances magazine (small “p” and in
italics), given to concert goers, is a “composer profile” of Igor Stravinsky: “Born: 1875,
Ciboure, France. Died: 1937, Paris, France.”

False. Those so-called facts are not the facts. I can prove it. I wasn’t around when Stravinsky was born, but
all authoritative texts say he was born in Russia in June of 1882. Paris is where he composed many of his
compositions and, if you believe what is represented in the movie Coco Chanel & Igor Stravinsky, Paris
is where he is reputed to have had an adulterous love affair with the celebrated
fashion designer Coco Chanel. Note: Unlike the descriptions to publicize the
movie, I avoided the adjective “passionate” to describe the love affair. To so characterize a love affair that may
never have happened would be contrary to the spirit and theme of this column
and would, as they say, “be playing fast and loose” with the facts. And even if the illicit love affair happened,
how do we know this particular one was passionate? On second thought, aren’t all illicit love
affairs passionate? Why else would
anyone have one?

But
back to verifiable facts about Stravinsky.
I know for sure he did not die in 1937.
I saw him and Robert Craft conduct a concert of Stravinsky’s music at
UCLA’s Royce Hall in 1957, a celebration of Stravinsky’s 75th
birthday. And I have a witness. Prominent lawyer Andrea Ordin was at the
concert, sitting next to me. The astute
reader will have concluded that she had not yet gone to law school. Stravinsky died in New York in 1971. By the way, it was Maurice Ravel who was born
in 1875 in Ciboure, France, and died in 1937 in Paris.

So
should we pillory the author of the article who got his or her facts
wrong? Sure. Why not?
It happens to me all the time.
But I am unable to do so here because the author of Stravinsky’s profile
is not named. Should we then lay blame
on editors of the magazine published by the Southern California Media Group for
a gaffe they didn’t catch? Maybe so. Editors must ensure accurate reporting in
their publications. But are editors
responsible for inaccuracies in opinion pieces?
That is another story.

This
takes me to an article that appeared in the Daily
Journal a couple of weeks ago titled, in bold print, “A Waste of Limited Judicial Resources” by Jonathan Goldstein (May
11, 2017). The article appears under the
rubric “PERSPECTIVE.” So at least we
know the article is Goldstein’s perspective. One such perspective is enough.

Above
the photograph of his stern visage is a brief curriculum vitae in italics. It tells us that besides being a judge pro tem
in various counties throughout California, he is “the only attorney appointed
by the State Bar to serve as a special master in every county in California.” And he has “clerked for a former State
Supreme Court Presiding Justice.” Must
have been in some other state. We don’t
have a presiding justice in our Supreme Court.
We do have a Chief Justice.

In
his article, Mr. Goldstein severely criticizes a panel of justices in the 2nd District
for publishing an opinion that he concedes was correctly decided. He chides the justices for deciding “to brief
and hear argument” in the case and suggests the court should have simply denied
the appeal.

Mr. Goldstein you are a “special master.”
You should have mastered your subject
matter. In California, the right to
appeal a criminal conviction is statutory. (Pen. Code, §§ 1235, 1237; Douglas v.
California (1963)372 U.S. 353, 356; People v. Vargas (1993)
13 Cal.App.4th 1653, 1659.) The initial
appeal of a felony conviction to the California Court of Appeal is a matter of
right, with further review being discretionary.
(Douglas, at p. 356.) It
is not the judiciary that is “the butt of jokes.”

So do we blame the editors of the Daily Journal for publishing Mr.
Goldstein’s novel perspective? Of course
not. Above Mr. Goldstein’s photograph
appears this disclaimer: “The opinions
in this article are strictly his own.”
Let’s hope so.

Oh, I almost forgot. Disclosure.
I have been a columnist for the Daily
Journal for 29 years, and my views are strictly my own.

Monday, May 15, 2017

A recent article in the New York Times by Adam Liptak
reported on a 15-year study concerning oral argument at the United States
Supreme Court. The study, soon to be
published in the Virginia Law Review, was conducted by law professor Tonja
Jacobi and law student Dylan Schweers, both from Northwestern University. They conclude that so-called “conservative
justices interrupt liberal justices at significantly higher rates than liberal
justices interrupt conservatives.” And I
guess conservative justices interrupt their conservative colleagues less often
than they interrupt their liberal colleagues.
For the sake of discussion, I suppose these easy labels have a measure
of legitimacy.

What a
revelation. I thought this interrupting
phenomenon as it occurs in the general public was the other way around. At least that was my impression when I was a
law student at Berkeley in the sixties.
I and all my like-minded liberal friends spent most of our time
interrupting one another. I soon
discovered that this practice did not foster learning. When bullhorns made their appearance on the
Berkeley campus, I began losing my hearing and my mind. The din foreclosed reasoned discourse. The Free Speech Movement restrained my speech. The cost was so high, it drove me out of
Berkeley.

Professor
Jacobi told the Times that “interruptions are generally considered an aspect of
dominance, and the conservatives feel dominant over the liberals.” Jacobi points out that “conservatives have
dominated the court for the past 50 years.”
Looking back at the court some 60 or so years ago, I wonder if Justices
Warren, Black, Douglas, Brennan, and Marshall interrupted their less liberal
colleagues more than the other way around.

Jacobi and
Schweers land another shocker in the April 11, 2017 edition of the Harvard
Business Review. Reader discretion
advised: “[M]ale justices interrupt
female justices approximately three times as often as they interrupt each other
during oral arguments.” The study
covered not just the current Supreme Court, but the court in 1990, when Sandra
Day O’Connor was the only woman on the court.
The court’s practice then, and in 2002 and 2015, reflects a pattern of male
justices consistently interrupting female justices at a far higher rate than they
interrupt their male counterparts. And
as the years progress and the number of female justices increases, so too have
the number of interruptions by male justices.

The authors
believe that Justice Gorsuch will fall within the current pattern based on his
senate hearings. The authors write: “He
could not help repeatedly interrupting the liberal female senators.”

Speaking of
Justice Gorsuch, his name came up during a casual conversation at the El Tovar
Hotel at the Grand Canyon this past January. I was having dinner in a private dining room
with the singing group “Singers In Law.” We were celebrating the birthday of attorney
and singer Linda Hurevitz who came up with the catchy title. The other members of the singing group are
attorneys John Blumberg, Ken Freundlich, and Barbara Gilbert, who is not an
attorney, but is married to a judge, and sometime ago was a court reporter.

None of us
knew it at the time, but the Singers In Law would sing the Star Spangled Banner
before thousands of cheering fans at the L.A. Kings game at Staples Center on
April 2nd. Justice Gorsuch
may have had something to do with it. So
while we were having dinner, Philip Anschutz, who has an ownership interest in
the Kings, Staples Center, the El Tovar Hotel, and a few thousand other
enterprises, walked in and said, “Excuse me, but did you know that Teddy
Roosevelt once dined in this room?” He
then introduced himself. We had a nice
chat with him and his charming wife Nancy. Our convivial conversation covered the history
of the Grand Canyon.

He asked me if
I knew a good friend of his on the 10th Circuit, Judge Neil
Gorsuch. “Gorsuch? Mmm, don’t know him.”
Funny how quickly things change. Anschutz asked about us, and there you have
it.

The Star
Spangled Banner is a tough song to sing, especially a cappella. The Singers In
Law brought the house down. And people
of widely differing political beliefs cheered.
Might be a good foundation for reasoned discourse without interruptions.

Enough wishful
thinking. Getting back to Justice
Gorsuch. After his senate hearings, I
read the case for which he was given heat for his “cold” dissent, TransAm Trucking v. Admin. Review Bd., U.S.
Dept. of Labor (2016) 833 F.3d 1206.
An employee was fired by his trucking company employer for disobeying an
order of the employer. The employee was transporting
cargo in a tractor-trailer for his employer in the late evening hours “when the
brakes on his trailer froze because of subzero temperatures.” (P. 1208.) At
the employer’s direction, he waited several hours for help to arrive. The heater in his cab was not working. He fell asleep and then awakened when he
received a phone call from his cousin.
His torso was numb and he could not feel his feet. He called his employer who told him to either
wait or “drag the trailer with its frozen brakes.” (P. 1209.) Instead, the employee “unhitched his truck
from the trailer and drove away, leaving the trailer unattended. He was terminated for abandoning the trailer.” (P. 1208.)

The majority
agreed with the decision of the Administrative Law Judge and the Administrative
Review Board of the Department of Labor that the driver was terminated in
violation of the whistleblower provisions of the Surface Transportation
Assistance Act. The majority discussed relevant statutory definitions of
“operate,” but also discussed provisions of 49 U.S.C. § 31105(a)(1)(B)(ii),
which make it
unlawful to discharge an employee who “‘refuses to operate a vehicle because . . . the employee has a reasonable apprehension of serious
injury to the employee or the public because of the vehicle's hazardous safety
or security condition.’” (P. 1211.)

The
dissent expressed another point of view. Gorsuch wrote: “A trucker was stranded on the
side of the road, late at night, in cold weather, and his trailer brakes were
stuck. He called his company for help
and someone there gave him two options. He
could drag the trailer carrying the company's goods to its destination (an
illegal and maybe sarcastically offered option). Or he could sit and wait for help to arrive (a
legal if unpleasant option). The trucker
chose None of the Above, deciding instead to unhook the trailer and drive his
truck to a gas station. In response, his
employer, TransAm, fired him for disobeying orders and abandoning its trailer
and goods.

“It might be fair
to ask whether TransAm's decision was a wise or kind one. But it's not our job to answer questions like
that. Our only task is to decide whether
the decision was an illegal one. The
Department of Labor says that TransAm violated federal law, in particular 49 U.S.C. § 31105(a)(1)(B). But that statute only forbids employers from
firing employees who ‘refuse[] to operate a vehicle’ out of safety concerns. And, of course, nothing like that happened here.
The trucker in this case wasn't fired
for refusing to operate his vehicle. Indeed, his employer gave him the very option
the statute says it must: once he voiced
safety concerns, TransAm expressly -- and by everyone's admission -- permitted
him to sit and remain where he was and wait for help. The trucker was fired only after he declined
the statutorily protected option (refuse to operate) and chose instead to operate
his vehicle in a manner he thought wise but his employer did not. And there's simply no law anyone has pointed
us to giving employees the right to operate their vehicles in ways their
employers forbid. Maybe the Department
would like such a law, maybe someday Congress will adorn our federal statute
books with such a law. But it isn't
there yet. And it isn't our job to write
one -- or to allow the Department to write one in Congress's place.” (PP. 1215-1216.)

I wonder if Judge
Gorsuch interrupted his colleagues during oral argument.

We all have favorites‑favorite office holders (fewer these
days), favorite uncles and aunts, favorite judges (the most evanescent category),
favorite judicial opinions. Oh, I almost
forgot, favorite columnists. Let’s
narrow the field to Daily Journal columnists‑all favorites.

Columnists cannot
be sure who reads their column. That is
less the case when it comes to judicial opinions. Attorneys and judges on all
courts are compelled to read them.
Readers can fume privately or publicly about the merits of the opinion,
but generally they read under compulsion. It’s different with columnists. We may have what is called a “readership,”
and we do get our share of emails or missives of praise or criticism. The latter I try to handle with equanimity.

When one is a
columnist for a professional legal journal like the Daily Journal, one expects
the readers to be in the field of law. I
mean how many entomologists read my column or any other column in the Daily
Journal? I have heard, however, from a
few etymologists. The experience was not
all that pleasant.

But one never
knows. Take basketball star Kobe Bryant,
for example. Several years ago I was at
the local car wash waiting in line to pay my bill. Even though I was looking straight ahead, I
became aware of a looming presence behind me.
I turned around and found myself face-to-face with a belt buckle. I craned my neck upwards and had to bend
backwards to see that it was Kobe Bryant. I wasn’t going to bother him and ask
some silly question that a star struck fan might pose. I turned around and tried to act nonchalant
despite the Tower of Pisa leaning behind me.
I paid my bill, went outside, and sat on a stone bench while I watched the
energetic employees work on my car.

As it turned
out, Kobe sat next to me. He spread his
“things” out next to my “things.” Not
sure why I put “things” in quotes. What
should I say, “paraphernalia”? Naw… too…
formal. And “stuff” too… informal. “Things” means… well, things, like cell
phones, a pad on which to jot thoughts… for maybe a column, a small case in
which to put whatever. I detest “whatever.” Just sharing with you the “things” columnists
worry about.

So I moved my
things out of the way to make room for Kobe’s things. In doing so, our eyes met. Of course my head was tilted as far back as it
could go and my chin was thrust in an uncomfortable upward position. It seemed at that point appropriate to say
something. At that time Kobe was
building a palatial home on a hill in the neighborhood. The local papers had reported that the plans
called for a full size basketball court in the basement. For some reason beyond my ken, some neighbors
objected to the basketball court. Their
view would not be obstructed because the house was on the top of the hill with
nothing to obstruct. So I said, “So
how’s the house going?” Kobe smiled, and
said it was a pain or maybe “a pain in the ass.” We chatted briefly about trivial things, what
semanticists refer to as “pre-symbolic” language. His car was ready and he said goodbye. Hmmm, it just occurred to me that I was in
line first, but his car was ready before mine.
Oh well. A group of kids gathered around him and he signed a few
autographs and left.

The reason I
mention Kobe Bryant in the middle of a column about favorite columnists is that
it never occurred to me to ask Kobe if he had ever read my column. In fact, I never ask anyone that
question. But were I to ask such an
obnoxious, self-centered question, I would not pose it to, of all people, Kobe
Bryant.

Neither would
I pose that question to his rival and one-time teammate, Shaquille O’Neal. Last week at Staples Center, the Los Angeles
Times wrote about the unveiling of a bronze statue of Shaq. It is 9 feet tall and weighs 1,200 pounds, a
replica close to the actual person. And
Kobe was there to wish him well despite their past rivalry. Age mellows… sometimes.
By the way, I forgot to mention. Shaq read my column. I cannot say he reads my columns, but I know
for sure he read one.

It happened
years ago when the Lakers lost one of their games to the Sacramento Kings at
the Western Conference finals. After the game, Shaq, who was unhappy with
questionable calls from the referees, said that the only way to beat the Lakers
“starts with a C and ends with a T.” So,
of course, that reminded me of footnote 2 in People v. Arno (1979) 90 Cal.App.3d 505, 514. I wrote about this in a column in 2002 and
suggested that Shaq’s word game reflected a poor loser. I said the answer to the puzzle was not what
Shaq intended, but what I thought was more appropriate, “Cheap Shot.”

Of course, I
wasn’t worried that Shaq would read the column and come to Division 6 and
dribble me around the courthouse. But
one morning during our conference prior to oral argument, my colleagues placed
before me a large manila envelope. They
watched me open it and, as I recall, took a picture of my reaction to what was
in the envelope. It was a copy of my
column about Shaq. Written above the heading
was: “Gilbert J., what makes you think I
don’t read your column? Shaq # 34.”

The truth is
that Shaq read the column because it was given to him. My friend and colleague Justice Elwood Lui at
that time was a lawyer and a member of the Harbor Commission. Shaq, who has an interest in law enforcement,
was then a reserve officer in the Harbor police department. He wanted to get together and have lunch with
Justice Lui and me. Our lunch never took
place. Before we could agree on a date,
Shaq left for the Miami Heat.

So to my Daily Journal fellow
columnists (who I read regularly and admire ‑ Chemerinsky, Hoffstadt, Balabanian,
Kessler, Moskovitz, Kanner, Lawton, Connor, Berger, and others, whom I will
recall after publication and kick myself for not mentioning), you never know
who will be reading your insights and wisdom.
It could be someone from an entirely different profession or line of
endeavor. It could even be someone like
Shaquille O’Neal, who as I already mentioned, read one of my columns. Of course it’s not a big deal or anything… but
I wonder… you think maybe he gave my column to Kobe?

And farewell to friend John Van
de Kamp. He used his considerable skills
to help others as a public office holder and lawyer. John set the standard for
the person we yearn to have in government, a legacy that will endure.

Compromise. It is ubiquitous. In last month’s column, I discussed the law
students at NYU who refused to represent the county opposing an adoption sought
by a gay couple in a moot court case.
The law school, lacking backbone, backed down and did not insist the
students carry out the assignment. The
school unwittingly helped the students deprive themselves of the opportunity to
learn how best to represent a gay couple with the same issue in the real world. Wonder whether those students took the same
position when they became lawyers, with clients to serve and bills to pay.

But this poses a legitimate question
all lawyers must face. Are they selling
out if they take cases for causes they find inimical to their cherished values? Does the principle that everyone is entitled
to representation override such values?
How many criminal defense lawyers have to deal with the question put to
them at dinner parties, “How can you represent someone you know is guilty?” When such annoying questions are posed to me,
I cite the example of the ACLU representing the National Socialist Party, whose
members sought to conduct a parade in Skokie, Ill., wearing Nazi uniforms and
displaying swastikas. It usually gets me
nowhere.

Set against this troubling backdrop is
Business and Professions Code section 6068 regarding the duties of an
attorney. Subdivision (h) provides, “It
is the duty of an attorney . . . : Never to reject, for any consideration personal
to himself or herself, the cause of the defenseless or the oppressed.”

This tension is no less a matter of
concern for judges than it is for attorneys.
I have friends who seek my advice on applying for a judicial
appointment. One such potential
applicant told me he was opposed to the death penalty. I told him that if he received a judicial
appointment, it was likely, at some point, he would be given a criminal
assignment. He also was “unalterably”
opposed to the statutes prohibiting prostitution. I told him these concerns should not be a
problem provided he followed the law and did not let his personal views
influence his rulings and judgment. I
emphasized that it would be unacceptable to recuse himself from those cases,
because he would be forcing his judicial colleagues to take on assignments he
found distasteful. And even trading
cases with other judges would not be appropriate, unless a recusal was
necessary because of a circumstance a particular case presented‑‑knowing a
witness, for example.

Code of Civil Procedure section 170
provides, “A judge has a duty to decide any proceeding in which he or she is
not disqualified.” Section 170 was the
driving force behind Canon 3B(1) of the California Code of Judicial Ethics which
provides, “A judge shall hear and decide all matters assigned to the judge
except those in which he or she is disqualified.” ABA Model Code of Judicial Conduct (Feb. 2007)
Rule 2.7 provides, “A judge shall hear and decide matters assigned to the
judge, except when disqualification is required….” This involves personal bias against a party,
witness or attorney, knowledge about the case or personal friendships with
parties in the case. The comment to Rule
2.7 says: “The dignity of the court, the
judge’s respect for fulfillment of judicial duties, and a proper concern for
the burdens that may be imposed upon the judge’s colleagues require that a
judge not use disqualification to avoid cases that present difficult,
controversial, or unpopular issues.”

My friend did not apply for the
bench. He never told me whether my
informal admonition influenced him. I do
believe, however, he was quite capable of doing what the job required of him. Perhaps
he thought it would be too much of a struggle.

I read recently in the Washington Post
an article by Derek Hawkins about a Social Security Administration judge in
Texas who took a defiant stand, perhaps without an inner personal
struggle. The judge refused to watch a lesbian,
gay, bisexual and transgender (LGBT) video as part of his mandatory diversity
training. He asserts his right not to
have to watch the video because it subjects him to a “religiously hostile work
environment.” The judge claims he will suffer “irreparable harm” unless a court
prevents the agency from disciplining him or forcing him to watch the
video. If he prevails, his religious
beliefs may be superior to those of businesses who balk at doing business with the
LGBT community.

The tension between conscience and
duty will be heightened in a proposed presidential executive order called “Establishing
a Government-Wide Initiative to Respect Religious Freedom.” I heard about this initiative on NPR last
week. The Investigative Fund, a
non-profit corporation dedicated “to improving the scope and overall quality of
investigative reporting in the independent press and beyond,” and the Nation
Institute published an article by Sarah Posner on February 1, 2017.

“The
draft order seeks to create wholesale exemptions for people and organizations
who claim religious or moral objections to same-sex marriage, premarital sex,
abortion, and trans identity, and it seeks to curtail women’s access to
contraception and abortion through the Affordable Care Act.”

Of course we have no way of knowing
whether this proposed “order” will see the light of day. But if it does, it is the judiciary who will
be deciding, among other things, its First Amendment implications.

I will resist the temptation to offer solutions
to the troubling issues presented in this column. Instead, I leave to you, dear readers, some questions
to ponder, a kind of test.

Freedom to worship is one thing, but
freedom to exercise and to practice one’s religion is another. How does this distinction affect how we view
the position of the administrative judge in Texas and the reach of the Initiative
to Respect Religious Freedom?

What is a religion? Does the term “religion” apply only to “established”
religions?

Can a set of unique religious
principles created by a small group of people constitute a religion? Do numbers matter? Does it matter whether this number is 150,000
or 150?

Do
judges who render decisions that protect religious practices for those
charged with violating statutes that prohibit those practices help to establish
religion?

My view? Bring me a case to decide and I will do my
best to provide a principled and coherent answer. I know many of you are not shy about sharing
your answers or impressions with me.
That is your option. But not to
worry, I grade on a curve.

Post
Script- Judge Joseph Wapner, a principled judge who consistently decided cases
with impartiality, fairness and dedication to the rule of law, was my friend
and colleague. He passed away last
week. Whether he decided a civil case
involving complex business transactions in the Los Angeles Superior Court, or
decided whether a pet store negligently dyed a French poodle blue instead of
pink on “The People’s Court,” Judge Wapner was the nation’s quintessential fair
judge. Unlike many of his television successors,
he treated litigants with dignity and fairness.
It was easy for him, because he was just being himself. He showed the nation what the judiciary is at
its finest. Goodbye, Joe, and thanks for
providing the standard we all strive to achieve.

The Beverly Hills Bar
celebrated its 85th birthday on Saturday evening, Jan. 28th. There was a big party. I was there and played
in the Big Band of Barristers conducted by Gary Greene. The night before, the bar’s dynamic Executive
Director Marc Staenberg was honored at a black tie dinner.

Eight-five years ago, minorities were not welcome in most bar
associations. The Beverly Hills Bar was
created to remedy that injustice. It
opened its doors to all lawyers, regardless of their race, or ethnic and
cultural background. So I was happy to
be there. During a break, I mingled with
the guests and met a Chinese immigration lawyer. She looked me over and informed me this was
the Year of the Rooster. I asked if
there was something about me that reminded her of roosters. She gave me a second look and mumbled “not
really.” I was concerned because a
sizeable number of short guys often act like roosters to make up for their shortcomings.

She then asked what year I was born. I took a few seconds, and figured it out. I hesitated, but did not want egg on my
face. So I told her, even though it was
nothing to crow about. Instead of
remarking how good I looked for my age, she looked off into space and began
calculating. I think she used her
fingers. After a minute or two, her eyes
focused on me. “You were born in the Year
of the Ox.” The what? I was convinced she was mistaken. I thought for a moment about china shops (pardon
the reference), but oxen don’t go into china shops. Are oxen stubborn? No, mules are. An ox is large; I am slight. I protested, but she maintained her
calculations were correct.

I checked with my friend and colleague Justice Elwood Lui, the
first Chinese jurist appointed to the California Court of Appeal. He consulted charts and graphs on a special
app on his cell phone and concluded I was definitely born in the Year of the
Ox. He asked if my parents called me “Babe”
and if I had an affinity for lumberjacks.

I
was about to protest, when it hit me like a pickax. I realized the calculation was correct. Quite apart from favoring the color blue, I
had interpreted the Year of the Ox too literally. I am more in the nature of an
oxymoron. (Please do not emphasize the
last two syllables.) Scholars and
charlatans agree that my columns are an exercise in oxymoronic prose. The multiplicity of themes speaks to doubtful
certainty. I was overcome with bored
excitement.

The
oxymoronic theme reminds me of some law students at NYU some 26 years ago. They were what I call “refusing advocates.” With apologies to Lord Tennyson, they were
“falsely true” to their beliefs. The
students refused to participate in a moot court competition when they were
assigned to argue against the petition of a lesbian couple seeking custody of a
child.

The
students and I agreed upon one point. It
is unacceptable to deny relief to the otherwise qualified petitioners because
they are lesbians. But that is why we
need lawyers. Lawyers protect all points
of view, however offensive. The Bill of
Rights was enacted so that politically incorrect points of view could be
expressed.

At that time, I wrote in the Daily Journal: "If lawyers become intimidated by the
enforcers of correct thought, then we are in big trouble. The students who refused to participate in the
moot court competition because they disagreed with the principle they were
assigned to argue unwittingly sabotaged the very principles they professed to
support. When certainty of the
correctness of your position causes you to silence the opposition, you have
undermined your own position. You have
become like your enemy.”

Nat Hentoff in his book “Free Speech
for Me, But Not for Thee: How the
American Left and Right Relentlessly Censor Each Other” (Harper Collins 1992)
also expressed his dismay about the refusal of the students to participate in
the moot court competition. He wrote:

"The presence of self-appointed enforcers
to compel the expression of the politically correct point of view can have a
devastating effect on the law profession.

"If lawyers forget this, we will ultimately have a
society where ideas are crimes. Fahrenheit 451, Brave New World, and 1984
will have been written in vain.

"Those who fight for minority rights, whether they be
the rights of gays, blacks, Jews, women, or atheists, should be particularly
sensitive to preserving the right of others to be heard, no matter how
loathsome the point of view.

"By
allowing the free expression of bad and even offensive ideas, we insure that
good ideas flourish. It is this way that we preserve the American freedom of
mind and spirit. It’s something law
students must learn, and lawyers must never forget."

Hentoff
quoted extensively from my column in his book which proves that the Daily
Journal has a wide circulation. But it
meant a great to me because as a kid in high school I became a Nat Hentoff
devotee. He was an influential jazz
critic when I had the absurd notion of becoming a jazz musician. My passion for that career was not sufficient
to overcome my aversion to crowded, smoke-filled night spots and late hours. And I was not all that thrilled about starving
to death. Can you imagine that during a
break on a gig, the musicians were so poor that they were forced to share a
cigarette?

For
years Hentoff wrote for the Village Voice covering a variety of subjects that
included jazz reviews and social commentary. He was a wonderful writer and incisive critic
on subjects that included civil liberties, politics and political correctness. A mutual friend and writer had planned to
introduce me to Hentoff. I looked
forward to the three of us having a lunch or dinner and engaging in lively
conversation. That will not come to
pass. Nat Hentoff passed away last
month. He was a congenial provocateur.

About Me

Justice Arthur Gilbert is the Presiding Justice of Division 6 of the California Court of Appeal, Second District. By day Justice Gilbert presides over his cases with quiet but firm dignity. The evening is a different story. He sheds his robe to become a probing columnist on a tireless quest to reveal little known facets of the justice system. For over two decades Justice Gilbert has written his column for the legal newspaper, The Los Angeles Daily Journal to a confused but devoted readership. This blog site contains selected columns from the more than 200 that have appeared in past editions of the Daily Journal.
Gilbert's books, "Under Submission" and "Under Submission Volume II are available on Amazon.com